337 U.S.

86
69 S.Ct. 968
93 L.Ed. 1231

HYNES, Regional Director, Fish and Wildlife Service,

Department of the Interior,
v.
GRIMES PACKING CO. et al.
No. 24.
Argued Oct. 21, 1948.
Decided May 31, 1949.

[Syllabus from pages 86-88 intentionally omitted]

Mr. Roger P. Marquis, Washington, D.C., for petitioner.
Messrs. W. C. Arnold and Frank L. Mechem, Seattle, Wash., for
respondents.
Mr. Justice REED delivered the opinion of the Court.

The Secretary of the Interior on May 22, 1943, issued Public Land Order 128. It
is set out in full below.1 In this case the significant part of No. 128 is that the
Secretary included in the reservation by paragraph 2, adjacent tidelands and
coastal waters along the entire shore line of the uplands that touched Shelikof
Strait between Kodiak Island and the Alaska Peninsula. The authority of the
Secretary to utilize presidential power in the designation of this reservation out
of public lands in Alaska flows from a delegation to the Secretary of
presidential power to withdraw or reserve public lands and revoke or modify
prior reservations. Executive Order No. 9146, of April 24, 1942, 1 C.F.R.,
Cum.Supp. 1149. The presidential power over reservations is made specific by
the Act of June 25, 1910.2 Another statutory provision, however, is the
principal basis for Order 128. This is s 2 of the Act of May 1, 1936, 49 Stat.
1250. This act was passed to extend to Alaska the benefits of the WheelerHoward Act of June 18, 1934, 48 Stat. 984, 25 U.S.C.A. 461 et seq., and to
provide for the designation of Indian reservations in Alaska. As 2 is important
in our discussion, the pertinent provisions are set out in full:

'Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an

Indian reservation any area of land which has been reserved for the use and
occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23
Stat. 26), or by section 14 or section 15 of the Act of March 3, 1891 (26 Stat.
1101), or which has been heretofore reserved under any executive order and
placed under the jurisdiction of the Department of the Interior or any bureau
thereof, together with additional public lands adjacent thereto, within the
Territory of Alaska, or any other public lands which are actually occupied by
Indians or Eskimos within said Territory: Provided, That the designation by the
Secretary of the Interior of any such area of land as a reservation shall be
effective only upon its approval by the vote, by secret ballot, of a majority of
the Indian or Eskimo residents thereof who vote at a special election duly
called by the Secretary of the Interior upon thirty days' notice: * * *'

The Native Village of Karluk held a meeting on May 23, 1944, and accepted
'the proposed Indian Reservation for this village. The adoption of said
Reservation passed by a vote of 46 for and 0 against. 11 of the eligible voters
were absent.' See note 26, infra. Under 19 of the Wheeler-Howard Act, 25
U.S.C.A. 479, the Alaskan aborigines are classified as Indians.

On March 22 and August 27, 1946, the Secretary of the Interior amended the
Alaska Fisheries General Regulations, 50 C.F.R., 1946 Supp., 208.23, that
related to the commercial fishing for salmon in the Kodiak Area Fisheries by
the addition of a subsection (r), reading as follows:

'(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public
Land Order No. 128, May 22, 1943), beginning at a point on the east shore of
Shelikof Strait, on Kodiak Island, latitude 57 32 30 ' N., thence northeasterly
along said shore to a point 57 39 40 '.

'The foregoing prohibition shall not apply to fishing by natives in possession of

said reservation, nor to fishing by other pesons under authority granted by said
natives (49 Stat. 1250; 48 U.S.C. 358a (48 U.S.C.A. 358a)). Such authority
shall be granted only by or pursuant to ordinance of the Native Village of
Karluk, approved by the Secretary of the Interior or his duly authorized
representative.'

The authority for the regulation is given as 34 Stat. 264 and 478, as amended
by the Act of June 6, 1924, 43 Stat. 464, 48 U.S.C.A. 221 et seq., an Act for
the protection of the fisheries of Alaska, known as the White Act.3 As the
controlling section of this statute also is important, it is set out here,4 44 Stat.

752:
8

'Section 1. That for the purpose of protecting and conserving the fisheries of the
United States in all waters of Alaska the Secretary of Commerce from time to
time may set apart and reserve fishing areas in any of the waters of Alaska over
which the United States has j risdiction, and within such areas may establish
closed seasons during which fishing may be limited or prohibited as he may
prescribe. Under this authority to limit fishing in any area so set apart and
reserved the Secretary may (a) fix the size and character of nets, boats, traps, or
other gear and applicances to be used therein; (b) limit the catch of fish to be
taken from any area; (c) make such regulations as to time, means, methods, and
extent of fishing as he may deem advisable. From and after the creation of any
such fishing area and during the time fishing is prohibited therein it shall be
unlawful to fish therein or to operate therein any boat, seine, trap, or other gear
or apparatus for the purpose of taking fish; and from and after the creation of
any such fishing area in which limited fishing is permitted such fishing shall be
carried on only during the time, in the manner, to the extent, and in conformity
with such rules and regulations as the Secretary prescribes under the authority
herein given: Provided, That every such regulation made by the Secretary of
Commerce shall be of general application within the particular area to which it
applies, and that no exclusive or several right of fishery shall be granted therein,
nor shall any citizen of the United States be denied the right to take, prepare,
cure, or preserve fish or shellfish in any area of the waters of Alaska where
fishing is permitted by the Secretary of Commerce. * * *' See for definition of
'several,' 2 Bl.Com. 3940.

These are the statutes and orders that created the situation that led to this
litigation.

10

The issuance of the White Act regulation of March 22, 1946, brought concern
to the commercial fishing interests of Alaska. This was because of its drastic
penalties. See note 49, infra. The native village of Karluk spoken of in Order
No. 128, establishing the reservation is situated on the Karluk River, long
recognized as one of the most important salmon spawning streams of Alaska.
The natives live at its mouth on Shelikof Strait. There the salmon must
congregate from the Strait to enter the channel of the river leading to their
spawning grounds in the interior of Kodiak Island. The waters included in the
reservation are those stretching eight miles along the coast north and south of
the mouth, 3,000 feet into the Strait. Thus the best of the Karluk salmon fishery
is put into the reservation by Order No. 128.5 For an understanding of the
locality, a sketch map is appended.

11

The importance of the Karluk fishery will be appreciated by reference to a few

of the facts in connection with it. When Russia ceded Alaska to the United
States in 1867, 15 Stat. 539, Karluk was already well known as an abundant
salmon fishery.6 By 1885 the salmon canneries were flourishing and Bancroft
reports the Karluk pack at 36,000 cases out of a total of 65,000.7 The
production continued large.8 The red salmon was most prolific. There were
variations in the catch but it was always valuable.9 In later years, the
fluctuations continued and other varieties increased relatively.10

12

None of the respondent companies have packing plants at Karluk. All are,
however, on Kodiak, Island, which is around 100 miles long and 50 broad, and
within fishing distance of the reservation waters. There is a fish refrigeration
plant on the river. These canners have canned fish from these waters for from
seven to twenty-four years. The percentage of each canner's pack that comes
from the reserved waters is so large that the trial court found irreparable injury
to the packers if they could not obtain the catch of the reservation. '* * * no
other replacement source of such salmon for their canneries on Kodiak Island is
available to them.' The canners' investment is substantial, running from two to
five hundred thousand dollars respectively. The fishing is done by men who
own their own three- to four-man boats, use similar company boats or operate
under boat buying contracts. Prices for the catch vary for these classifications.
These packers employ over four hundred fishermen, chiefly residents of Alaska
and over six hundred cannery employees, chiefly nonresidents.

13

The fishing season at Karluk begins around June 1 and continues intermittently,
depending upon the run of fish, until Sept. 30. After the issuance of 208.23(r)
restricting the fishery at Karluk Reservation to Karluk natives and licensees,
respondents brought this action against the Regional Director for the Territory
of Alaska of the Fish and Wildlife Service to permanently enjoin the exclusion
of their fishermen from the reservation on the ground that neither regulation
208.23(r) nor Public Land Order No. 128 legally closed the fishery of the
coastal waters to respondents. The District Court granted the permanent
injunction and held invalid both the regulation and the land order. 67 F.Supp.
43. On the same grounds the Court of Appeals for the Ninth Circuit affirmed
the order for permanent injunction. 165 F.2d 323.

I.
14

(a) At the outset the United States contends that the Secretary of the Interior is
an indispensable party who must be joined as a party defendant in order to give
the District Court jurisdiction of this suit. In Williams v. Fanning, 332 U.S. 490,
68 S.Ct. 188, 92 L.Ed. 95, the test as to whether a superior official can be

dispensed with as a party was stated to be whether 'the decree which is entered
will effectively grant the relief desired b expending itself on the subordinate
official who is before the court.' 332 U.S. at page 494, 68 S.Ct. at page 189.
Such is the precise situation here. nothing is required of thE secretary; he does
not have to perform any act, either directly or indirectly. Respondents merely
seek an injunction restraining petitioner from interfering with their fishing. No
affirmative action is required of petitioner, and if he and his subordinates cease
their interference, respondents have been accorded all the relief which they
seek. The issues of the instant suit can be settled by a decree between these
parties without having the Secretary of the Interior as a party to the litigation.
15

(b) Petitioner, Regional Director for the Territory of Alaska of the Fish and
Wildlife Service of the Interior Department, is charged with the duty of
enforcing the acts of Congress relating to the fisheries of Alaska and
regulations issued thereunder. The District Court found that since March 22,
1946, the effective date of 208.23(r) of the Alaska Fisheries General
Regulations, petitioner has continually threatened the seizure of all boats and
equipment used to fish in the waters covered by this regulation to respondents'
substantial and irreparable loss, and that the seasonal run of salmon in the
reservation waters was essential for respondents' profitable operation. From the
following facts it will be seen that there is sufficient evidence to support these
findings.

16

After the promulgation of the fishery regulation, 208.23(r), the Warden for
the Fish and Wildlife Service on Kodiak Island, one of petitioner's subordinate
agents, repeatedly informed officials of the canneries that the regulation would
be enforced and that the necessary steps would be taken to prosecute any
violations. He communicated to the representatives of the canneries the
contents of a telegram in which petitioner directed that a case to test the
regulation be arranged for the opening day of the fishing season. The contents
of this telegram were relayed to the headquarters in Seattle of the Alaska
Salmon Industry, Inc., a trade association of the canned salmon packers of
which all but one of respondents are members. Thence the information was
distributed to all interested parties. The Kodiak warden then reiterated to the
cannery operators on that island his intention to enforce the regulation even
though his force and equipment were inadequate for the purpose.

17

Thereafter two officers of the Indian Service were appointed special agents for
the Fish and Wildlife Service to assist in the enforcement of the fishing
regulations issued by the Interior Department. They arrived at Karluk June 24,
1946. These two deputies were armed and maintained a boat patrol in the
waters of the reservation. They checked the names of boats fishing in the

waters of the reservation against the permits issued by the village of Karluk. No
boats were allowed inside the area which had been restricted for beach seining
by vote of the Indian meeting of May 23, 1944,11 and which was marked off by
buoys.
18

If respondents show that they are without an adequate remedy at law and will
suffer irreparable injury unless the enforcement of the alleged invalid regulation
is restrained, a civil court will enjoin.12 While ordinarily criminal prosecutions
will not be restrained even under an invalid statute,13 a civil action will lie in
exceptional circumstances that make an injunction necessary to effectually
protect property rights.14

19

The facts heretofore detailed as to the investments of respondents in canneries

and fishing equipment and their establish activities in the waters of the
reservation make clear the serious effect on them of exclusion from the
reservation. It is not a threat of a single prosecution, as in the Spielman case,
but an ousting of respondents and their employees from the fishing grounds
unless each individual person takes a fishing license. Under the findings the
respondents could not operate profitably if prohibited from fishing in the
reservation area. Many fishermen may stay away from the grounds for fear of
punishment. In the pursuit of their otherwise lawful business respondents are
threatened with criminal prosecution should they fish in the waters of the
Karluk Reservation without a permit from the native village. For the violation
of the applicable regulation under the White Act, severe penalties are imposed
including fine, imprisonment, the summary seizure of boats, haul, gear,
equipment, and their forfeiture to the United States.15 These sanctions deny to
respondents an adequate remedy at law for to challenge the regulation in an
ordinary criminal proceeding is to hazard a loss against the payment of a license
fee and compliance with the fishing rules of the natives. Yet to stay out of the
reservation prevents the profitable operation of the canneries. In such a situation
a majority of the Court thinks that the 'danger of irreparable loss is both great
and immediate' and properly calls forth the jurisdiction of the court of equity.16

II.
20

Respondents sought this injunction forbidding criminal proceedings aimed at

excluding them from fishing in the coastal waters of Karluk Reservation on the
ground that Public Land Order No. 128, note 1, supra, was invalid as a whole
and particularly because of the inclusion of tidelands and coastal waters by 2
of the order.

21

Respondents attack in their complaint the validity of the entire order because

'no part of the land area involved had been withdrawn by Executive Order and
placed under the jurisdiction of the Department of the Interior prior to May 1,
1936, as required by the Act of May 1, 1936.' This position has not been
pressed or decided.17 The final order for an injunction against petitioner does
not include any ruling on that point.
22

Nor do we think the authority of the Secretary of the Interior to establish the
Karluk Reservation, Public Land Order 128, by virtue of the use and occupancy
of the area by the natives under 8 of the Act of May 17, 1884, 23 Stat. 26, 48
U.S.C.A. 356, or 14 or 15 of the Act of March 3, 1891, 26 Stat. 1101, need
be decided. While the point is referred to in the briefs, no such issue was
tendered by the complaint; no such point was raised by the assignments of
error; the question was specifically pretermitted by the opinion of the Court of
Appeals, 165 F.2d at page 325; it is not included in the questions presented by
the petition for certiorari and is not relied upon by the respondents to require
affirmance of the Court of Appeals decree.

23

(a) The validity of Public Land Order 128 depends in this case on the scope of
the power granted to the Secretary to establish this reservation by the language
of 2 of the Act of May 1, 1936, supra, authorizing the Secretary of the Interior
to designate as a reservation 'any other public lands which are actually occupied
by Indians or Eskimos within said Territory.' An administrative order is
presumptively valid.18

24

In this instance, the Secretary acted by statute, 2, Act of May 1, 1936, and
through delegation of presidential authority.19 This delegation in turn rested on
the Act of June 25, 1910, 36 Stat. 847.20 This chain of delegated authority for
the allocation of public lands in Alaska retains for future congressional action
the power for the ultimate disposition of the property, land and water, within
the boundaries of the reservation. Withdrawals under the Act of June 25, 1910,
are 'temporary' and 'until revoked by him or by an Act of Congress.'

25

The Wheeler-Howard Act of June 18, 1934, 'To conserve and develop Indian
lands and resources,' which was extended to the Territory of Alaska by 1 of
the Act of May 1, 1936, authorized the Secretary of the Interior to restore to
tribal ownership only the remaining surplus lands of any Indian reservation
theretofore opened for sale or other disposition.21 It did not authorize the
creation of reservations of any kind. Its only reference to acquisition of lands by
or for Indians is in 5, 25 U.S.C.A. 465, where appropriations are authorized
for that purpose. This section is inapplicable here.

26

Section 2 of the extending act, set out at the beginning of this opinion, 337 U.S.

26

Section 2 of the extending act, set out at the beginning of this opinion, 337 U.S.
91, 69 S.Ct. 972, supra, gives no power to the Secretary to dispose finally of
federal lands. B the new section he is authorized simply 'to designate as an
Indian reservation' any other public lands which are actually occupied by
Indians or Eskimos within said Territory. There is no language in the various
acts, in their legislative history, or in the Land Order 128, from which an
inference can be drawn that the Secretary has or has claimed power to convey
any permanent title or right to the Indians in the lands or waters of Karluk
Reservation. Rather the contrary is true. In the Act of May 14, 1898, 30 Stat.
409, 48 U.S.C. 411, 48 U.S.C.A. 411, 'Extending the homestead laws and
providing for right of way for reilroads in the District of Alaska, and for other
purposes,' there is the express proviso that nothing contained in the Act 'shall
be construed as impairing in any degree the title of any State that may hereafter
be erected out of the Territory of Alaska, or any part thereof, to tide lands and
beds of any of its navigable waters, or the right of such State to regulate the use
thereof, nor the right of the United States to resume possession of such lands, it
being declared that all such rights shall continue to be held by the United States
in trust for the people of any State or States which may hereafter be erected out
of said Territory. The term 'navigable waters,' as herein used, shall be held to
include all tidal waters up to the line of ordinary high tide and all nontidal
waters navigable in fact up to the line of ordinary high-water mark.' Indeed the
United States affirms in its brief that Karluk Reservation is merely a reservation
'for a particular governmental use,' not a disposal of the area. The government
says it is like Sioux Tribe v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86
L.Ed. 1501, not like United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct.
197, 70 L.Ed. 465.

27

An Indian reservation created by Executive Order of the President conveys no

right of use or occupancy to the beneficiaries beyond the pleasure of Congress
or the President. Such rights may be terminated by the unilateral action of the
United States without legal liability for compensation in any form even though
Congress has permitted suit on the claim. Sioux Tribe v. United States, 316
U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501; see United States v. Santa Fe Pacific
R. Co., 314 U.S. 339, at page 347, 62 S.Ct. 248, 252, 86 L.Ed. 260.22 When a
reservation is established by a treaty ratified by the Senate or a statute, the
quality of the rights thereby secured to the occupants of the reservation depends
upon the language or purpose of the congressional action.23 Since Congress,
under the Constitution, 3 of Art. IV, has the power to dispose of the lands of
the United States, it may convey to or recognize such rights in the Indians, even
a title equal to fee simple, as in its judgment is just. Shoshone Indians v. United
States, 324 U.S. 335, 339, 340, 65 S.Ct. 690, 692, 693, 89 L.Ed. 985. When
Congress intends to delegate power to turn over lands to the Indians
permanently, one would expect to and doubtless would find definite indications

of such a purpose.24
28

In the present case a determination of the power delegated to the Secretary of

the Interior by the Wheeler-Howard Act of June 18, 1934, and 2 of the Act of
May 1, 1936, is important. It is important for the reason that a statute that
authorizes permanent disposition of federal property would be most strictly
construed to avoid inclusion of fisheries by implication. Petitioner argues for a
holding that the power granted covers water as well as land. If that power were
broad enough to enable the Secretary to designate nonrevocable or permanent
reservations of all Alaska fishing grounds for the sole benefit of natives living
in villages adjacent to the fisheries, it might place in his hands the power to
grant the natives the right to exclude all other fishermen from the fisheries. In
this present case, for example, it might mean that the native residents of the
Karluk Reservation would have the perpetual use and enjoyment of this
valuable Karluk fishery for themselves and their licensees.25 On May 23, 1944,
a year after Public Land Order 128, the petitioner shows that there were 57
residents eligible to vote for approval of the designation of the reservation.26 As
indicated by the cases hereinbefore cited, a recognition of such ownership in
Indians might require just compensation to them of the fair value of the fishery,
if the United States should desire hereafter to reopen the area to the public
under its regulations. There is much less reason to read such power of
permanent disposition by the Secretary into 2 than there was to read it into
the President's 'implied grant of power' to create reservations. United States v.
Midwest Oil Co., 236 U.S. 459, 475, 35 S.Ct. 309, 314, 59 L.Ed. 673. It would
take specific and unambiguous legislation to cause us to rule that Congress
intended to authorize the Secretary of the Interior to alienate the Alaska
fisheries permanently from public control.27 The argument that Congress did
not intend to authorize the designation of water or fisheries as a part of an
Indian reservation has behind it the unarticulated premise that the United States
must have complete power to protect, improve and regulate for the good of all
our people these unrivalled sea fisheries with their wealth of food. It loses much
of its force by our conclusion that Alaskan Indian reservations, established or
enlarged under 2 are subject to the unfettered will of Congress.28

29

(b) An argument that the reservation is a nonrevocable grant can be made.

Under the Act of June 18, 1934, 16, 25 U.S.C.A. 476, applicable to Alaska,
see 13, 25 U.S.C.A. 473, an Indian tribe was authorized to adopt a
constitution and by-laws for its government. This was done by the Karluk
Reservation Indians. There is a phrase in the section that has color of
recognition of ownership of tribal lands in the Indians. It reads as follows:

30

'In addition to all powers vested in any Indian tribe or tribal council by existing

law, the constitution adopted by said tribe shall also vest in such tribe or its
tribal council the following rights and powers: * * * to prevent the sale,
disposition, lease, or encumbrance of tribal lands, interests in lands, or other
tribal assets without the consent of the tribe; * * *.' 48 Stat. 987.29
31

We think, however, in view of the breadth of the coverage of the WheelerHoward Act that this language would be effective only where there has been
specific recognition by the United States of Indian rights to control absolutely
tribal lands.

32

Persuasive of this conclusion is that the bill when originally introduced by

Interior provided in 7 of Title III that 'Title to any land acquired pursuant to
the provisions of this section shall be taken in the name of the United States in
trust for the Indian tribe or community for whom the land is acquired, but title
may be transferred by the Secretary to such community under the conditions set
forth in this Act.' The italicized words were omitted when this section was
incorporated into 5 of the Wheeler-Howard Act, 25 U.S.C.A. 465. See
Hearings before House Committee on Indian Affairs, 73d Cong., 2d Sess., on
H.R. 7902, p. 9.

33

Turning to 2 of the Act of May 1, 1936, the strongest argument for the
nonrevocability of a reservation, created under 2 of that Act comes from a
letter of the Secretary of the Interior printed in the House and Senate Reports
on the bill which became the Act in question.30 The reports, speaking of 2,
said:

34

'This provision in reality carries out the promise of this Government contained
in its act approved on May 17, 1884 (23 Stat. 26), as follows:

35

"Provided, That the Indians or other persons in said district shall not be
disturbed in the possession of any lands actually in their use or occupation or
now claimed by them but the terms under which such persons may acquire title
to such lands is reserved for future legislation by Congress." H.R.Rep.No.2244,
74th Cong., 2d Sess., p. 3.

36

The pertinent part of the letter is set out below. 31 The legislation was, of course,
a fulfillment of the aid foreshadowed in the statutes referred to in the letter.
Such references to general legislation on public lands in the huge Territory of
Alaska, however, cannot be treated as an adequate basis for courts to declare
that power was given the Secretary of the Interior to dispose finally of Alaska
lands. The first section of the Act of May 1 was a mere amendment of the

Wheeler-Howard Act to bring Alaska under its coverage. The Wheeler-Howard

Act did not authorize the creation of Indian reservations. Section 2 of the act
extending the Wheeler-Howard Act to Alaska was intended to permit the
organization of the Alaska natives so that they could avail themselves of the
earlier Act.32 It cannot be said, we think, that such reservations may be
permanent or nonrevocable. A reading of 2 will show that there are no words
with the connotation of recognition or conveyance of title. There are no words,
such as appear in other statutes,33 reserving the right of exploration, discovery
and claim for precious metals and valuable minerals. There is no discussion in
the reports or the debates that show a definite intention of anyone to part with
public property establish an Alaskan Indian communal system. Under such
circumstances, we think the land and water reservations created under 2 are
reservations at will.
37

(c) We are convinced that 2 of the Act of May 1, 1936, authorizes the
Secretary of the Interior to include in the Karluk Reservation the waters
described in 2 of Public Land Order No. 128. To interpret the clause 'or any
other public lands which are actually occupied by Indians or Eskimos within
said Territory' to describe only land above mean low tide is too restrictive in
view of the history and habits of Alaska natives and the course of
administration of Indian affairs in that Territory. The title to the uplands and
waters in question is in the United States.34 The fisheries as well as the uplands
are subject to its present control.35 In 1868 Congress extended our laws relating
to customs, commerce and navigation over the 'mainland, island, and waters of
the territory.' 15 Stat. 240. The seal islands and the waters adjacent thereto were
promptly made a reservation for the preservation and exploitation of the seal
fishery. 15 Stat. 348, 16 Stat. 180. A civil government for the new territory was
set up in 1884. 23 Stat. 24. In that act appeared the proviso referred to supra, n.
31, in the letter of the Secretary of the Interior. By 12 a commission was
empowered to report upon the condition of the Indians.36 On June 30, 1885, the
Commission reported to the Secretary of the Interior as to the fisheries in the
words in the margin below.37

38

By virtue of 15 of the act of Congress of March 3, 1891, supra, note 28, the
Congress set apart the 'body of lands known as Annette Islands' in Alaska for a
reservation for the Metlakahtla Indians. Nothing was said as to fishing rights. A
presidential proclamation of April 28, 1916, reserved to them the surrounding
waters within 3 000 feet. 39 Stat. 1777.38 After the proclamation a proceeding
was brought by the United States relying upon the statute and proclamation to
oust a fish trap of the Alaska Pacific Fisheries from the waters mentioned in the
proclamation. Such a decree was obtained in the District Court and affirmed by
the United States Court of Appeals for the Ninth Circuit on the ground 'that the

reservation of Annette Island by the act of Congress, and of its surrounding

waters by the President's proclamation, is fully sustained.' Alaska Pacific
Fisheries v. United States, 240 F. 274, 283. For the validity of the proclamation
reliance was placed upon his power to reserve lands for reservations without
specific authority. See United States v. Midwest Oil Co., supra. This Court
affirmed the decree as to the waters within 3,000 feet of the shore lines.
Although in the brief a vigorous attack was made on the power to issue the
proclamation covering the waters, the proclamation was not referred to in the
unanimous opinion here. This Court felt compelled to decide the fisheries were
included in the language of the statute by the purpose to assist the Indians to
train themselves. Fishing was said to give value to the islands. 'The use of the
adjacent fishing grounds was equally essential. Without this the colony could
not prosper in that location.' Alaska Pacific Fisheries v. United States, 248 U.S.
78, 89, 39 S.Ct. 40, 42, 63 L.Ed. 138.
39

The conditions as to the waters around the Annette Islands closely parallel
those of other Alaska areas actually occupied by natives. The Annette Islands
case was relied upon by the Secretary of the Interior for his authority to include
the fisheries under 2 of the Act of May 1, 1936. 56 Int.Dept. 110. The Alaska
aborigines, like the Metlakahtlans, are fishermen. They, too, depend upon the
waters for a large part of their support. For them the adjacent fisheries are as
important, perhaps more important than the forests, the furbearing animals or
the minerals.

40

Respondents urge upon us the cases in this and other courts which have held
that the phrase 'public lands,' the term now under consideration, used in 2 of
the Act of May 1, 1936, does not include any area extending below mean high
tide.39 As the respondents state, this case turns not on tidelands, the area
between mean high and mean low tides, but on whether the Secretary could
include coastal waters in the reservation, i.e., the area '3000 feet from the shore
line at mean low tide.' As we understand respondents' argument and as we see
this case, the question of tidelands is not significant. Reference to Mann v.
Tacoma Land Co., 153 U.S. 273, 283, 14 S.Ct. 820, 821, 38 L.Ed. 714, will
make clear respondents' positi n. Before the admission of Washington to
statehood, November 11, 1889, 26 Stat. 1552, the United States issued land
scrip to Mann for location on 'unoccupied and unappropriated public lands' and
the holder made location on tidelands and received the register's certificate
therefor. When Mann sought to restrain trespass on the land so obtained, this
Court held: 'It is settled that the general legislation of congress in respect to
public lands does not extend to tide lands. There is nothing in the act
authorizing the Valentine scrip, or in the circumstances which gave occasion
for its passage, to make an exception to the general rule.' 153 U.S. at page 284,

14 S.Ct. at page 822. Respondents assert that the reference to public lands in
2 should be construed in the same manner since the federal land laws apply to
Alaska40 as do the reasons for excluding waters seaward of mean high tide.41
41

The Government points out that the cases relating to the limits of 'public lands'
are cases where final disposition not temporary use of the lands appeared.
When one deals with a statute so large in purpose as to justify the above-quoted
comment of the Secretary of the Interior that it 'provides a method by which the
financial aid provisions of the Indian Reorganization Act may be extended to
those Indians and Eskimos of Alaska who occupy established villages,' one
may not fully comprehend the statute's scope by extracting from it a single
phrase, such as 'public lands' and getting the phrase's meaning from the
dictionary or even from dissimilar statutes. Section 2 of the Act of May 1, 1936,
is but one of a series of enactments relating to Alaska natives, lands and
fisheries. It must 'be taken as intended to fit into the existing system' and
interpreted in that aspect.42 There is nothing that we have found in the statute or
the legislative history to justify the significance put upon the use of the words
'public lands' in the clause of 2 under discussion instead of 'lands' used in the
preceding clauses. If a differentiation was intended, surely it would have been
more definitely expressed.

42

Taking into consideration the importance of the fisheries to the Alaska natives,
the temporary character of the reservation, the Annette Islands case, the
administrative determination, the purpose of Congress to assist the natives by
the Alaska amendment to the Wheeler-Howard Act, we have concluded that the
Secretary of the Interior was authorized to include the waters in the reservation.
No injunction therefore may be obtained because of the invalidity of Order No.
128.

III.
43

Subdivision II of this opinion has been directed toward the determina ion of the
scope of 2 of the Act of May 1, 1936, extending the Wheeler-Howard Act to
Alaska. We were led to hold that Order 128, set out in full in note, 1, supra,
validly included in ther reservation the waters to a distance of 3,000 feet from
its shores. In his handling of the problems of the Karluk natives as affected by
their need for a reservation and fishing rights, the Secretary of the Interior took
another step under the authority of 1 of another act, the White Act. The
section is set out at length in the text beginning on page 4 of this opinion (337
U.S. 93, 69 S.Ct. 973). The Act was for the protection of the fisheries of
Alaska. Section 1 authorized the Secretary to set apart fishing areas in any of
the waters of Alaska and establish in those preserves closed seasons 'during

which fishing may be limited or prohibited.'

44

Pursuant to this statute detailed regulations were issued by the Secretary of

Commerce and they have been continued by the Secretary of the Interior since
Reorganization Plan No. II, note 4, supra.43 One area established was the
Kodiak Area which included the waters here in question.44 Among the waters
at first closed to commercial salmon fishing were the Karluk River spawning
waters and those within 100 yards of its mouth.45 Later the Secretary of the
Interior, still acting solely under 1 of the White Act, added the waters of the
Karluk Reservation to the prohibited areas.46 An exception was made in the
regulation to the prohibition against fishing in the reservation waters. The
precise language of the entire subsection (r) of the regulation, 208.23, is on
page 4 of this opinion. (337 U.S. 92, 69 S.Ct. 972). We repeat here the
exception:

45

'The foregoing prohibition shall not apply to fishing by natives in possession of

said reservation, nor to fishing by other persons under authority granted by said
natives. 49 Stat. 1250; 48 U.S.C. 358a, 48 U.S.C.A. 358a. Such authority
shall be granted only by or pursuant to ordinance of the Native Village of
Karluk, approved by the Secretary of the Interior or his duly authorized
representative.' The citation to 49 Stat. 1250 is to the Act of May 1, 1936,
authorizing the creation of the reservation. Perhaps it was thought that the
creation of the reservation justified this exception in the White Act regulation
but we do not understand that any support from that Act is claimed for the
establishment of the White Act preserve.

46

The validity of the exception permitting fishing by natives in possession of the

reservation and their licensees is challenged by respondents because of a
proviso in 1 of the White Act, reading:

47

'Provided, That every such regulation made by the Secretary of Commerce shall
be of general application within the particular area to which it applies, and that
no exclusive or several right of fishery shall be granted therein, nor shall any
citizen of the United States be denied the right to take, prepare, cure, or
preserve fish or shellfish in any area of the waters of Alaska where fishing is
permitted by the Secretary of Commerce. * * *' 48 U.S.C.A. 222.

48

Respondents alleged that the exception for fishing by natives and their licensees
made 208.23(r) wholly illegal because it was inconsistent with the proviso of
1 of the White Act as to exclusive or several right of fishery. The District and
Circuit Courts agreed with this argument and the District Court said that the

regulation must be viewed in its entirety, 67 F.Supp. 43, 49. We agree that it is
not possible to separate the closing of the area from the exception and thus hold
the closing applicable to everyone. A right to fish locally is too important to the
natives in Alaska for us to conclude from this record that the Secretary would
have promulgated the prohibition to fish for salmon in reservation waters
without the exception in favor of the natives. We have no doubt, however, that
the White Act authorizes the establishment of White Act preserves or closed
areas in reservations created, as the Karluk Reservation, under 2 of the Act
extending the Wheeler-Howard Act to Alaska. No implications can be drawn
from the broad and clear language of the White Act that reservation waters,
however valuable for fishing or fish propagation, must be left unprotected from
ruthless exploitation.
49

What we have said heretofore in this opinion as to the importance of fisheries

and their conservation to Alaska natives with reference to the Karluk River area
in particular need not be repeated. The quoted section of the White Act gives
power to the Secretary so that he may '(c) make such regulations as to time,
means, methods and extent of fishing as he may deem advisable.' Then follows
the proviso that every such regulation shall be of general application and that
no exclusive or several right of fishing shall be granted therein. This section was
enacted to correct alleged abuses that arose in the administration of the Act 'For
the protection and regulation of the fisheries of Alaska,' approved June 26,
1906, 34 Stat. 478. By 6 of the earlier act, streams or lakes could be set aside
as permanent preserves but not coastal waters. Although the 1906 Act did not
delegate regulatory powers in the amplitude of the White Act, fishing
reservations in territorial waters were created by Executive Order and
regulations were issued thereunder.47 The policy behind these regulations and
their administration was to restrict the right to fish commercially to those who
had formerly fished in these areas. See Fisheries Service Bulletin No. 92, Jan.
2, 1923. Congress did not propose that these rich fishing grounds should be
monopolized by this defined group. The legislative history of the White Act
only emphasizes what the statute clearly says, that is, no special privileges in
Alaskan fishing preserves.48 The enforcement provisions of the White Act gave
stern warning to prospective violators.49

50

For the conservation of the fisheries, it was recognized that administrative

flexibility must be permitted.

51

'The maters of Alaska are so vast and the local conditions so varied that it is
utterly impossible to prescribe by legislation in detail the provisions necessary
to meet each situation. To attempt to do so would be to defeat the purposes
sought. This can be done by placing broad powers and a wide discretion in the

administrative branch having charge of the subject.' Sen. Rep. No. 449 on H.R.
8143 (which became the White Act), 68th Cong., 1st Sess., p. 2. Compare Dow
v. Ickes, 74 App.D.C. 319, 123 F.2d 909, 913.
52

Although 8 of the White Act50 left a power in the Territorial Legislature of

Alaska to impose taxes or licenses for fishing, we do not read 8 as limiting
the power to license fishing to the Territorial Legislature. The section does not
make the legislative power exclusive. Since 1 of the White Act not only
authorizes the establishment of fishing preserves but also requires that the
fishing be carried on 'in conformity with such rules and regulations as the
Secretary prescribes under the authority herein given,'51 we are of the opinion
that licenses for fishing may be required in areas regulated under the White Act.
We think, however, these licenses may be only regulatory in character and,
within the discretion of the Secretary, must have their cost fixed so as not to
exceed the estimated approximate cost of reasonable policing of the area. We
do not read the White Act as empowering the Secretary to raise general funds
for native welfare of general conservation purposes from White Act preserves.

53

As 208.23(r) with its exception in favor of the natives in possession of Karluk

Reservation and their licensees is based upon 1 of the White Act, we think it
clear that its proviso 'that no exclusive or several right of fishery shall be
granted therein,' applies to commercial fishing by natives equally with fishing
companies, nonresidents of Alaska or other American citizens and so applies
whether those natives are or are not residents on a reservation. We find nothing
in the White Act that authorizes the Secretary of the Interior to grant
reservation occupants the privilege of exclusive commercial fishing rights. It
seems also clear to us that the adoption of a corporate charter and a constitution
by the Native Village of Karluk under 16 and 17 of the Wheeler-Howard
Act, 25 U.S.C.A. 476, 477, discussed, supra, 337 U.S. 107, 69 S.Ct. 981, can
add nothing to the power of the Secretary under the White Act. 'Exclusive,' as
used in 1 of the White Act forbids not only a grant to a single person or
corporation but to any special group or number of people. The legislative
history set out above shows this. The offending regulations which brought
about the enactment of the roviso in 1 of the White Act were administered so
as to limit fishing to those who had been using the fisheries before the
regulations. The White Act fishing preserves were not intended to furnish a
monopoly to a favored few. Whatever may be the powers of the Department of
the Interior or the natives as to regulating the entrance of persons other than
natives in possession of Karluk Reservation into or on the area of land and
water in that reservation,52 they are not broad enough to allow the use of the
White Act sanctions to protect the reservation against trespass. White Act
sanctions are for White Act violations. The Department of the Interior by

208.23(r) has decided upon the conservation of fisheries in the described waters
of the Karluk Reservation in accordance with the White Act with an exception
in favor of the natives that seems to rest on the fact that the natives are on a
reservation that includes the White Act conservation area. This cannot be done.
The welfare of the 57 electors of Karluk Reservation and their families is
important. The Secretary of the Interior, however, cannot given them such
preferences as are here given under the authority of the White Act. Other
American citizens are equally entitled to the benefits from White Act
preserves.53 We hold that the regulation 208.23(r) is void as a whole because
it violates the proviso of the White Act. See 337 U.S. 92, 69 S.Ct. 973.
IV.
54

There are problems cannected with the administration of the Karluk

Reservation and the protection of the fishing preserves that have not been
determined by the courts or the Department of the Interior. Our holding that
coastal waters may be included in the reservation waters and that the White Act
cannot be used to create a monopoly in the Indians establishes a different basis
for administrative and judicial conclusions. The 1945 ordinance must be
considered; it appears in the margin.54 It states that Public Land Order 128
restricts the right to fish commercially in the reservation waters to Karluk
inhabitants. This ordinance antedates the regulation. See 337 U.S. 92, 69 S.Ct.
972, supra. It evidently is based on the theory that the creation of the
reservation gave exclusive fishing rights to the natives in possession. Permits
required the approval of the Secretary of the Interior or his authorized
representative.55 An example of the permit is printed below. 56 We know
nothing from the record of the reasons for the $2 fee for residents or the $40
fee for nonresidents or their relation to the cost of policing the area. See Haavik
v. Alaska Packers' Association, 263 U.S 510, 44 S.Ct. 177, 68 L.Ed. 414. So far
as appears after once approving an ordinance, the Department's only direct
control over the ordinance is by approval or disapproval of amendments.57

55

This is an equitable proceeding in which the respondents seek protection

against unlawful action by petitioner, the Regional Director of the Fish and
Wildlife Service of the Department of the Interior. The interests of respondents,
the India of Karluk Reservation, and the efforts of the Department of the
Interior to administer its responsibilities fairly to fishermen and Indians are
involved.58 These are questions of public policy which equity is alert to
protect.59 This Court is far removed from the locality and cannot have the
understanding of the practical difficulties involved in the conflicts of interest
that is possessed by the District Court. Therefore we think it appropriate for us
to refrain from now entering a final order disposing definitively of the

controversy. With our conclusion on the law as to the establishment of the

reservation and the invalidity of the regulation before them, the Department and
the parties should have a reasonable time, subject to the action of the District
Court on the new proposals, to adjust their affairs so as to comply with our
determinations.
56

We therefore vacate the decrees of the District Court and the Court of Appeals
and remand this proceeding to the District Court with directions to allow thirty
days from the issuance of our mandate for the Secretary of the Interior to give
consideration to the effect of our decision. Unless steps are taken in this
proceeding the District Court, on the expiration of thirty days, shall enter a
decree enjoining the defendant Hynes and all acting in concert with him
substantially as ordered in the permanent injunction entered November 6,
1946.60 If timely steps are taken, the District Court will, of course, be free to
enter such orders as it may deem proper and not inconsistent with the present
decision. Pending the entry of further orders by the District Court, the
preliminary injunction entered July 18, 1946, shall apply to protect the rights of
the respondents.

57

It is so ordered.

58

Decrees vacated and proceedings remanded.

59

Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK and Mr. Justice
MURPHY agree, dissenting in part.

I.
60

Jurisdictional questions aside, I am in full agreement with the Court's

conclusion that Public Land Order 128, 8 F.R. 8557,1 is valid and was
effective, according to its terms, to include in the reservation for the Karluk
Indians the tidelands and coastal waters therein described. This action was
taken pursuant to the statutory authorizations recited in the order and
particularly the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C. 358a, 48
U.S.C.A. 358a. When approved by the Indians in accordance with the proviso
of the latter Act, Order 128 withdrew the area covered from any general or
public right of access for fishing or other purposes inconsistent with those of
the reservation and set aside that area for the exclusive benefit of the Indian
occupants and inhabitants. Cf. Alaska Pacific Fisheries v. United States, 248
U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138. The necessary effect was to forbid others to
enter the area for purposes inconsistent with the reservation's objects, thus

making persons so entering trespassers and subject to such remedies as the law
may afford to prevent or redress their wrongful entry.
61

By his 1946 amendments to the Alaska Fisheries General Regulations, 50

C.F.R. 1946 Supp., 208.23(r), the Secretary of the Interior reinforced his prior
action in setting aside the Karluk Reservation, prohibiting fishing within the
coastal waters included in Public Land Order 128, except 'by natives in
possession of said reservation' and 'by other persons under authority granted by
said natives * * * by or pursuant to ordinance of the Native Village of Karluk'
approved by the Secretary or his duly authorized representative.2 This action
was taken pursuant to 34 Stat. 264, 478, as amended by the White Act of June
6, 1924, 43 Stat. 464, as amended June 18, 1926, 44 Stat. 752.

62

That Act, in the interest of 'protecting and conserving the fisheries of the United
States in all waters of Alaska,' conferred upon the Secretary of Commerce (now
Interior), broad powers to 'set apart and reserve fishing areas in any of the
waters of Alaska over which the United States has jurisdiction' and within such
areas to 'establish closed seasons during which fishing may be limited or
prohibited as he may prescribe.' See Dow v. Ickes, 74 App.D.C. 319, 123 F.2d
909. Effective penal provisions by way of criminal sanctions and for seizure
and forfeiture of offending boats, gear and appliances were enacted to prevent
or redress violation of the regulations made pursuant to the statute's
authorization.3

63

The promulgation of Amended Regulations 208.23(r), pursuant to the White

Act's provisions, reinforced the effect of Public Land Order 128 in withdrawing
the area covered by the latter from public or common right of entry for fishing
and other purposes. But it had also the further effect of notifying the public that
trespass upon the reversed area by persons not entitled to enter and use it would
be met with the White Act sanctions4 for enforcement of the order and the
amended regulations.

64

Although holding Public Land Order 128 valid and effective to establish the
reservation for the Indians' exclusive benefit, the Court finds Amended
Regulations 208.23(r) 'void as a whole.' The chief consequence held to follow
is that the White Act sanctions cannot be applied to enforce the regulations or
to prevent or redress trespass upon the reservation by others than the Indians in
possession or their licensees.

65

With this conclusion I cannot agree. The amended regulations' invalidity is said
to follow solely because of the exception permitting natives and their licensees

to fish in reservation waters. This is said to violate the White Act proviso,
which forbids any 'exclusive or several right of fishery' and denial to any citizen
of the right to fish in any waters where fishing is permitted by the Secretary's
regulations. In other words, because the Secretary allows the Indians to fish in
the reservation waters he must allow all others to do so on equal terms,
otherwise his regulations become totally void and the White Act sanctions
unavailable for protection of the reservations and the Indians' rights.
66

This view, it seems to me, rests upon two fallacies. One is that the two statutes,
of 1936 and 1924, are in irreconcilable collision and the Secretary cannot
exercise the powers given to him by the 1936 Act and by the White Act
consistently and simultaneously with reference to the same waters. The other
fallacy is a corollary, namely, that the White Act proviso applies wherever the
White Act prohibitions and sanctions may be made applicable, even though the
area is a valid Indian reservation.

67

I do not think the two statutes are in such inescapable inconsistency as forbids
their simultaneous and harmonious pplication in setting aside and protecting
reservations for the exclusive use and benefit of the native Indian population.
Indeed their legislative history and purposes demonstrate that they were
intended to serve common objects in the conservation and protection of
Alaskan fisheries.

68

The White Act was adopted in 1924. Its primary object was to preserve the
fisheries of Alaska from the destructive private exploitation then taking place.
That evil did not arise from any previous, existing, or anticipated policy of
setting aside reservations for the exclusive benefit for the natives. It arose
exclusively from quite the contrary policy of permitting widespread
commercial exploitation by specially favored groups, not of Indians but of
others who sought and secured monopolistic privileges and favors in fishing.
There were therefore twin evils at which the White Act struck. One was the
rapid and virtually unrestrained depletion and destruction of the fisheries; the
other, the expanding creation of commercial monopolies fostered by
preexisting policy in regulating the industry. 65 Cong.Rec. 9520 9521; see also
65 Cong.Rec. 96809682; H.R.REp. No. 357, 68th Cong., 1st Sess. 2;
Sen.Rep. No. 449, 68th Cong., 1st Sess. 5; Hearings before Committee on
Merchant Marine and Fisheries on H.R. 2714, 68th Cong., 1st Sess.

69

The White Act, accordingly, was not merely and exclusively an antimonopoly
statute. It was both a conservation measure and one to outlaw private,
commercial monopoly. The conservation features were contained in the basic
general provisions giving the Secretary his broad powers of control over

fishing. The more specific antimonopoly features were included in the proviso.
The latter were important. But they did not override or minimize the more
general provisions, apart from the proviso, giving the Secretary power to
regulate the industry in the interest of 'protecting and conserving the fisheries of
the United States in all waters of Alaska.' The proviso merely limited the
manner in which his power was to be exercised in the situations to which the
proviso was applicable.
70

So the questions arise whether the proviso was intended to have any effect in
waters validly set aside by Congress, executive order, or the Secretary as
reservations for the exclusive benefit of the native population and, correlatively,
whether the policy of the proviso was meant to forbid the application of other
provisions of the White Act, including its prohibitions and sanctions, in the
protection and conservation of such reservations. In other words, was the
general policy of the White Act in conflict with the policy existing at its
enactment concerning Alaskan Indian reservations or later under the 1936 Act,
so as to require that the two policies or statutes be kept entirely separate and
distinct in their application and administration and to forbid them to be applied
conjointly in executing their common conserving and protecting objects.

71

Certainly the White Act proviso had no purpose to throw open validly created
Indian reservations to fishing by all comers. Its aim was not to destroy such
reservations or to open them to general, common rights of fishing. In view of
the legislative history cited above, which is consistently supported by
subsequent administrative construction,5 the proviso cannot be construed as
expressing any policy hostile to creating such reservations with exclusive rights
of fishing for the native population and protecting them against wrongful
invasion. On the contrary, the statute, including the proviso, was strongly
supported by the delegates in Congress from Alaska and others representing the
native interests6 as against those of commercial exploitation toward which the
Act was aimed. There were numerous Indian reservations in existence at the
time of the legislation, cf. Alaska Pacific Fisheries v. United States, supra,
affording the natives exclusive fishing rights. But the extensive le islative
history discloses no protest, complaint or concern arising on account of them.
Indeed it gives strong reason for believing that the native interests joined with
others in opposing continuance of the policy of monopolistic commercial
exploitation and in support of the White Act, including the proviso, as a
necessary method of preventing the imminent destruction of the natives' historic
means of livelihood by that form of exploitation, and not at all by reason of any
evils arising out of exclusive fishing rights granted to the native population in
reservations validly created for its benefit.

72

Consequently, far from representing an attitude or purpose of hostility toward a

policy of Indian reservations with exclusive native rights of fishing, the White
Act constituted an effective step toward conserving the Alaskan fisheries, under
the Secretary's broad regulatory powers, for such purposes as well as for the
prevention of monopoly in open fishing areas where no reservations existed.

73

It follows, in my view that the White Act proviso has, and was intended to
have, no application to validly created Indian reservations, either to forbid the
Secretary to exclude others than natives from fishing in the reservation waters
or to compel him, if he allows the natives to fish, to permit all other citizens to
do so on equal terms. The proviso had no purpose so to restrict his powers in
relation to reservation areas. It was directed solely against abuses by other than
native interests in waters not included within areas set aside for the natives'
exclusive benefit.

74

But it does not follow, in my opinion, that because the proviso is inapplicable
the Secretary is forbidden to exercise his regulatory and enforcing powers under
the White Act in protection of reservations and the natives' exclusive rights in
them or that he cannot utilize those powers and the White Act sanctions
conjointly with his authority under the 1936 Act to create reservations and
protect them against unlawful invasion. The White Act proviso aside as
inapplicable in purpose and intent to the specific situation, i.e., one involving a
validly created reservation, nothing in either statute forbids his doing so. Each
is in terms a conservation measure, having the common object of preserving
and protecting the Alaskan fisheries from unrestricted exploitation and
destruction by commercial interests. That community of purpose is not affected
by the fact that the one Act secures this protection for the public generally, the
other for the special benefit of the native population. That difference merely
means that two interests require and are given protection against a third, not
that the latter acquires immunity against protection afforded either or both of
the other two.

75

Accordingly, in my opinion, the White Act proviso being inapplicable to waters

included in a valid Indian reservation, the two statutes may be applied to serve
their basic common objects of conserving and protecting fisheries in all Alaskan
waters, including those set apart as valid Indian reservations, as against the
private, commercial exploitation and monopoly which the White Act and the
Act of 1936 were intended to prevent. The statutes should be construed and
Congress, I think, intended them to be construed, so as to work together
harmoniously, not irreconcilably, to achieve this object.

76

I therefore cannot regard Amended Regulations 208.23(r) as 'void as a whole.'

76

I therefore cannot regard Amended Regulations 208.23(r) as 'void as a whole.'

The regulations are valid, in my judgment, and enforceable by application of
the White Act sanctions except possibly in one respect. This is the feature by
which the Secretary has delegated to the Village of Karluk the authorit by
ordinance to license others than natives of the village to fish on terms fixed by
the ordinance subject to the Secretary's approval. Conceivably that power might
be exercised by the village, through licensing others than native inhabitants, in
a manner which would violate the spirit of the White Act proviso, i.e., by
licensing favored commercial interests so as to create essentially the type or
types of monopoly or favoritism the proviso intended to forbid.

77

It is one thing of course for the Secretary to give the natives exclusive rights of
fishing in the reservation's waters. It may be entirely another for him to
delegate to them the licensing of others, even retaining the power to approve
the licensing ordinances as Amended Regulations 208.23(r) does.

II.
78

Whether or not the authority conferred by the regulations upon the village to
license others is valid is a question, however, which I think it neither necessary
nor appropriate to answer in this proceeding, for reasons affecting the existence
and propriety of exercising equity jurisdiction in this case, now to be stated.

79

I seriously doubt the existence of equity jurisdiction on the showing made by

this record. But in any event I do not think it should be exercised to afford
respondents the relief they have sought. The Secretary of the Interior, whose
regulations and authority are at stake, has not been made a party to the suit. Nor
has the Village of Karluk, which obviously is vitally interested. Moreover, the
allegations concerning threatened enforcement of the regulations by White Act
sanctions seem questionably sufficient to establish the basis for equitable
intervention, in view of circumstances appearing in the record and asserted in
briefs filed here questioning their sufficiency.

80

But, if all these factors are put to one side, one other remains which in my
opinion precludes granting the equitable relief respondents seek. Their claim
was founded in the complaint, as I think it had to be, not only upon the alleged
invalidity of Amended Regulations 208.23(r), but also upon the asserted
invalidity of Public Land Order 128. However, they have not been successful in
the latter attack, for the Court holds that Public Land Order 128 is valid and
was effective to create the Karluk Reservation according to that order's terms.

81

This ruling cuts all valid ground from beneath respondent's claim to aid from a

court of equity. With it, they come not as persons entitled of right to enter the
reservation and fish, but solely as trespassers having no right of entry, but
seeking only to avert the incidence of possible remedies for threatened
wrongful entry. In effect the Court's decision is that respondents, although they
have not put forward their case in this light, are entitled to have it so determined
and to have equitable relief which prevents possible application of White Act
sanctions against them. I cannot agree that persons so situated have standing to
invoke the assistance of a court of equity. Accordingly I think the judgment
should be reversed and the cause should be remanded with instructions to
dismiss it.
82

Mr. Justice DOUGLAS joins in Part I of this opinion.

8 Fed.Reg. 8557:
'Alaska
'Modification of Executive Order
Designating Lands as Indian
Reservation
'By virtue of the authority contained in the act of June 25, 1910, c. 421, 36 Stat.
847, as amended by the act of August 24, 1912, c. 369, 37 Stat. 497, U.S.C.,
Title 43, secs. 141143 (43 U.S.C.A. 141143), and the act of May 1,
1936, c. 254, 49 Stat. 1250, U.S.C. Title 48, sec. 358a (48 U.S.C.A. 358a),
and pursuant to Executive Order No. 9146 of April 24, 1942: It is ordered, As
follows:
'1. Executive Order No. 8344 of February 10, 1940, withdrawing Kodiak and
other islands, Alaska, for classification and in aid of legislation, is hereby
modified to the extent necessary to permit the designation as an Indian
reservation of the following-described area:
'Beginning at the end of a point of land on the shore of Shelikof Strait on
Kodiak Island, said point being about one and one-quarter miles east of Rocky
Point and in approximate latitude 57 39 40 ' N., longitude 154 12 20 ' W.;
'Thence south approximately eight miles to latitude 57 32 30 N.;
'Thence west approximately twelve and one-half miles to the confluence of the

north shore of Sturgeon River with the east shore of Shelikof Strait;
Thence northeasterly following the easterly shore of Shelikof Strait to the place
of beginning, containing approximately 35,200 acres.
'2. The area described above and the waters adjacent thereto extending 3,000
feet from the shore line at mean low tide, are hereby designated as an Indian
reservation for the use and benefit of the native inhabitants of the native village
of Karluk, Alaska, and vicinity: Provided, That such designation shall be
effective only upon its approval by the vote of the Indian and Eskimo residents
of the area involved in accordance with section 2 of the act of May 1, 1936,
supra: And provided further, That nothing herein contained shall affect any
valid existing claim or right nder the laws of the United States within the
purview of that Section.'
2

The first section reads as follows, 36 Stat. 847, 43 U.S.C.A. 141:

'That the President may, at any time in his discretion, temporarily withdraw
from settlement, location, sale, or entry any of the public lands of the United
States, including the District of Alaska, and reserve the same for water-power
sites, irrigation, classification of lands, or other public purposes to be specified
in the orders of withdrawals, and such withdrawals or reservations shall remain
in force until revoked by him or by an Act of Congress.'
There is a second section designed to keep the reservations free for mineral
exploration and utilization. 43 U.S.C.A. 142.

There is an amendment, immaterial here, see 44 Stat. 752.

Under Reorganization Plan No. II the authority of the Department of

Commerce over the administration of the White Act was transferred to the
Department of the Interior, effective July 1, 1939. 53 Stat. 1431, 4(e), 5
U.S.C.A. 133t note.

The river itself and all waters within 100 yards of its mouth are closed to all
commercial salmon fishing. 50 C.F.R., 1946 Supp., 208.23(d).

Bancroft, History of Alaska, 17301885, p. 228, n. 12.

Id., p. 743.

H.Mis.Doc.No.211, 51st Cong., 1st Sess., Report of the Salmon and Salmon
Rivers of Alaska, p. 20:

'The number of salmon actually caught in Karluk Bay, near the river mouth and
in the lower portion of the river, is so large as to make a true statement
concerning them seem incredible. In 1888 the canneries put up over 200,000
cases, averaging about 13 red salmon to the case, or more than 2,500,000 fish.
In 1889 the number of fish put up was still larger, reaching probably 250,000
cases, containing more than 3,000,000 salmon. As the number of fish arriving
at Karluk Bay for a long period of years has been known to be far greater than
in any of the other bays of southern Alaska, it is probable that most of these
salmon were present at Karluk for the purpose of ascending the river to spawn.
Now the number of spawning fish seen in the river, the lakes, and their
connecting rivers was comparatively very small, indeed out of all proportion to
the number taken on the beach.'
Page 94
9

The highest reported by the Statistical Review of the Alaska Salmon Fisheries,
June 13, 1930, Bureau of Fisheries Bulletin, vol. XLVI, p. 666, was nearly
4,000,000 fish in 1901 and the lowest about 400,000 in 1927. The report said:
'Many investigations of the Karluk red-salmon fishery have been made, much
has been written about it, commercial interests have battled for exclusive
control and domination of it, and dire prophecies have been heard concerning
its ultimate destruction. Because of these things, Karluk has undoubtedly been
given more close attention than any other fishery in Alaska. * * *'

10

Unchallenged figures by plaintiffs show large catches. A table from the largest
operator is printed for illustration.
'The total catch of fish taken within the area now included in the Karluk Indian
Reservation during the years specified * * *:
Coho Chum Pink King Red Total
1941.. 1058. 632 9893 134 59958 71675
1942... 397. 14556 225323 57 58042 298375
1943.... 83. 825 2380 161 60273 63722
1944.... 33. 5803 219300 69 63535 288740
1945..... 4. 150 554 84 50907 51699
1946... 137. 8660 1024596 44 25381 1058818"

11

Minutes of Meeting:
'A meeting was called by the president and the same evening with Mr. Peters
Mr. Watrous of Juneau and Mr. Leraas present. Following discussion and
action:
'1. The problems of setting aside an area for beach seining were discussed. It
was agreed that 1000 yd. from the mouth of the river up the spit and from the
mouth of the river to Julia Fort point approximately 500 yd. on the
Improvement side, placing markers or buoys 500 yd. out from mean low water
mark be the restricted area for Karluk beach seining only. Purse seining could
be done outside this restricted area this year or until further action by the
council.'

12

See Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 17, 68 L.Ed. 255;
Petroleum Exploration v. Public Service Commission of Kentucky, 304 U.S.
209, 217219, 58 S.Ct. 834, 838 839, 82 L.Ed. 1294.

13

Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Ex parte Sawyer,
124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402.

14

Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; Packard v. Banton,
264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Truax v. Raich, 239 U.S. 33, 36 S.Ct.
7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283; Philadelphia Co. v.
Stimson, 223 U.S. 605, 620, second, 32 S.Ct. 340, 344, 56 L.Ed. 570. Cf.
Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 966, 85 L.Ed. 1416;
Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322;
Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606.

15

43 Stat. 466, 48 U.S.C. 226, 48 U.S.C.A. 226.

16

Parker v. Brown, supra, 317 U.S. at page 349, 63 S.Ct. at page 312, 87 L.Ed.
315. Seizure of a fisherman's boat is a drastic sanction. See Hearings before the
Subcommittee on Alaskan fisheries of the Committee on Merchant Marine and
Fisheries, 76th Cong., 1st Sess., pp. 4547.

17

67 F.Supp. 43; 165 F.2d 323.

18

Thompson v. Consolidated Gas Utilities Co., 300 U.S. 55, 69, 57 S.Ct. 364,
371, 81 L.Ed. 510; Pacific States Box & Basket Co. v. White, 296 U.S. 176,
185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853; Wampler v. Lecompte,
282 U.S. 172, 175, 51 S.Ct. 92, 93, 75 L.Ed. 276; Martin v. Mott, 12 Wheat.
19, 32, 6 L.Ed. 537.

19

Executive Order 9146, 1 C.F.R., Cum.Supp., p. 1149:

'By virtue of the authority vested in me by the act of June 25, 1910, c. 421, 36
Stat. 847, and as President of the United States, I hereby authorize the Secretary
of the Interior to sign all orders withdrawing or reserving public lands of the
United States, and all orders revoking or modifying such orders: * * *'
Executive Order 8344, 1 C.F.R., 1940 Supp., p. 101, referred to in Public Land
Order 128, temporarily withdrew Kodiak Island from settlement, location, sale
or entry for classification.

20

So far as material that act is set out in note 2, supra.

21

It is unnecessary to appraise the effect of such restoration. Tribal ownership

may vary from an unrecognized Indian title, see Northwestern Bands of
Shoshone Indians v. United States, 324 U.S. 335, 338, 340, 65 S.Ct. 690, 692,
693, 89 L.Ed. 985, to land so set apart to an Indian tribe by definitive treaty as
to require compensation to the tribe, if the United States thereafter appropriated
lands within the area. See Shoshone Tribe v. United States, 299 U.S. 476, 486,
57 S.Ct. 244, 246, 81 L.Ed. 360; 44 Stat. 1349. The effect of restoration under
the Wheeler-Howard Act will depend upon the provisions of law under which
the separate reservations exist. Compare Cohen, Handbook of Federal Indian
Law, c. 5, 5A, p. 94.

22

Possible claims under the Indian Claims Commission Act of August 13, 1946,
are not covered by this statement. See 60 Stat. 1049, 1050, 2(5), 25 U.S.C.A.
70a(5). It refers to claims 'based upon fair and honorable dealings that are not
recognized by any existing rule of law or equity. No claim accruing after the
date of the approval of this Act shall be considered by the Commission.'

23

United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed.
1213; Shoshone Tribe v. United States, 299 U.S. 476, 485, 486, 492, First, 57
S.Ct. 244, 246, 249, 81 L.Ed. 360; United States v. Creek Nation, 295 U.S. 103,
109, 55 S.Ct. 681, 683, 79 L.Ed. 1331; United States v. Holt State Bank, 270
U.S. 49, 58, 46 S.Ct. 197, 200, 70 L.Ed. 465; Confederate Bands of Ute Indians
v. United States, 330 U.S. 169, 176, et seq., 67 S.Ct. 650, 653, 91 L.Ed. 823;
Arenas v. United States, 322 U.S. 419, 64 S.Ct. 1090, 88 L.Ed. 1363, opinions
on remand, United States v. Arenas, 9 Cir., 158 F.2d 730; Arenas v. United
States, D.C., 60 F.Supp. 411.

24

For example in the Arenas case, 322 U.S. 419, 64 S.Ct. 1090, 88 L.Ed. 1363,
the statute read:
'Sec. 5. That upon the approval of the allotments provided for in the preceding

section by the Secretary of the Interior he shall cause patents to issue therefor in
the name of the allottees, which shall be of the legal effect and declare that the
United States does and will hold the land thus allotted for the period of twentyfive years, in trust for the sole use and benefit of the Indian to whom such
allotment shall have been made, or, in case of his decease, of his heirs
according to the laws of the State of California, and that at the expiration of
said period the United States will convey the same by patent to the said Indian,
or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or
incumbrance whatsoever. * * *' 26 Stat. 712, 713. 322 U.S. at page 422, 64
S.Ct. at page 1091.
25

One gets a sense of its value from the catch of a single operator. Note 10, supra.

26

We understand, although it is not a fact of weight, that the number includes

both men and women over twenty-one. 49 Stat. 1251; Constitution and ByLaws of the Native Village of Karluk, Alaska, Official Publication, United
States Department of the Interior, Office of Indian Affairs, GPO (1939);
Constitutio , Art. V, 1; Certificate of Adoption, p. 4; 48 Stat. 986987, 13
and 16, 25 U.S.C.A. 473, 476.
The population of Karluk around 1880 was 302. Report on the Population,
Industries, and Resources of Alaska by Ivan Petroff, p. 37, H.R.Misc.Doc. 42,
P. 8, 47th Cong., 2d Sess. In 1920 it was 99; in 1929 it was 192; in 1939 it was
189. 16th Census of the United States (1940), Population, vol. 1, Number of
Inhabitants, p. 1193.

27

In the Act of May 14, 1898, 30 Stat. 409, 48 U.S.C.A. 371 Note, which
extended the homestead land laws of the United States to Alaska, it was
specifically provided that 'no entry shall be allowed extending more than eighty
rods along the shore of any navigable water, and along such shore a space of at
least eighty rods shall be reserved from entry between all such claims, and that
nothing herein contained shall be so construed as to authorize entries to be
made, or title to be acquired, to the shore of any navigable waters within said
District: * * *.'

28

Compare the statute creating the Metlakahtla Reservation, 26 Stat. 1101:

'Sec. 15. That until otherwise provided by law the body of lands known as
Annette Islands, situated in Alexander Archipelago in Southeastern Alaska, on
the north side of Dixon's entrance, be, and the same is hereby, set apart as a
reservation for the use of the Metlakahtla Indians, and those people known as
Metlakahtlans who have recently emigrated from British Columbia to Alaska,
and such other Alaskan natives an may join them, to be held and used by them
in common, under such rules and regulations, and subject to such restrictions, as

may (be) prescribed from time to time by the Secretary of the Interior.' 48
U.S.C.A. 358. See 34 Stat. 1411, 46 U.S.C.A. 237, 238, and 48 Stat. 667,
8 U.S.C.A. 601 Note.
See a discussion of the limited power of the President to create even temporary
reservations for Indian immigrants. 18 Op.Atty.Gen. 557.
We have carefully considered the opinion in Miller v. United States, 9 Cir., 159
F.2d 997, where it is held, page 1001, that the Indian right of occupancy of
Alaska lands is compensable. With all respect to the learned judges, familiar
with Alaska land laws, we cannot express agreement with that conclusion. The
opinion upon which they chiefly rely, United States v. Alcea Band of
Tillamooks, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29, is not an authority for this
position. That opinion does not hold the Indian right of occupancy compensable
without specific legislative direction to make payment. See also United States
v. 10.95 Acres of Land in Juneau, D.C., 75 F.Supp. 841.
29

In Hearings before Senate Committee on Indian Affairs, 73d Cong., 2d Sess.,

on S. 3645, the bill which became the Act of June 18, 1934, p. 247, the
following discussion took place as to the meaning of these words:
'Senator O'Mahoney. But what you are saying here is that the constitution shall
vest in some personwhat? The following rights and powers. And then you
undertake to enumerate those powers. The first one that you enumerate is the
right to employ counsel. The second one is the right to prevent individuals from
selling and dis osing of their property. Then you come to a third one and it is to
represent the tribe, and that seems to me to be hanging up in the air.
'The Chairman. The second one you stated incorrectly.
'Senator O'Mahoney. Have I?
'The Chairman. It is not to prevent them from selling individual lands; it is
tribal lands.
'Senator O'Mahoney. Yes, that is right: tribal lands.'

30

H.R.Rep.No.2244 on H.R. 9866, 74th Cong., 2d Sess.; Sen.Rep.No.1748 on S.

4420, 74th Cong., 2d Sess.

31

'An even more important reason for the designation of reservations in Alaska is
that by doing so the United States Government will have fulfilled in part its
moral and legal obligations in the protection of the economic rights of the
Alaska natives. In at least two acts f Congress this obligation is specifically

acknowledged. The act approved on May 17, 1884, 23 Stat. 26, contains the
following language: 'Provided, That the Indians or other persons in said district
shall not be disturbed in the possession of any lands actually in their use or
occupation or now claimed by them but the terms under which such persons
may acquire title to such lands is reserved for future legislation by Congress.'
'The act of March 3, 1891, 26 Stat. 1100, contains similar language: 'That none
of the provisions of the last two preceding sections of this act shall be so
construed as to warrant the sale of any lands belonging to the United States
which shall contain coal or the precious metals, or any townsite, or which shall
be occupied by the United States for public purposes, or which shall be
reserved for such purposes, or to which the natives of Alaska have prior rights
by virtue of actual occupation.' Lands which should have been, by virtue of
these acts, segregated for natives of Alaska have not been so segregated.
The provisions of section 2 of H.R. 9866 will aid the Federal Government in
rectifying this condition, and in protecting the interests of the natives in the
future. Section 2 of the bill which gives to the Secretary of the Interior power to
designate certain lands as Indian reservations is, therefore, a logical sequence of
the legislative history regarding Indian lands in Alaska and provides a method
by which the financial aid provisions of the Indian Reorganization Act may be
extended to those Indians and Eskimos of Alaska who occupy established
villages.'
32

This appears from the following excerpt from the Secretary's letter:
'Indian tribes do not exist in Alaska in the same sense as in continental United
States. Section 19 of the Indian Reorganization Act defines the word 'tribe' as
referring to 'Any Indian tribe, organized band, pueblo, or the Indians residing
on one reservation.' With a few exceptions the lands occupied by natives of
Alaska have not been designated as reservations. In order, therefore, to define
an Alaskan tribe it is necessary to identify it with the land it occupies and in
terms of the language of the act, 'reservation.' In addition, if native
communities of Alaska are to set up systems of local government, it will be
necessary to stipulate the geographical limits of their jurisdictions. Reservations
set up by the Secretary of the Interior will accomplish this.' This, with the
proviso of the first section, was deemed sufficient to enable the lands to be
identified and to permit the Wheeler-Howard benefits to be available to the
Alaska natives.

33

36 Stat. 847, 2.

34

Treaty with Russia, proclaimed June 20, 1867, 15 Stat. 539, 541542:

Art. II. 'In the cession of territory and dominion made by the preceding article
are included the right of property in all public lots and squares, vacant lands,
and all public buildings, fortifications, barracks, and other edifices which are
not private individual property. * * *'
Art. III. 'The inhabitants of the ceded territory, according to their choice,
reserving their natural allegiance, may return to Russia within three years; but if
they should prefer to remain in the ceded territory, they, with the exception of
uncivilized native tribes, shall be admitted to the enjoyment of all the rights,
advantages, and immunities of citizens of the United States, and shall be
maintained and protected in the free enjoyment of their liberty, property, and
religion. The uncivilized tribes will be subject to such laws and regulations as
the United States may, from time to time, adopt in regard to aboriginal tribes of
that country.'
35

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87, 39 S.Ct. 40, 41, 63
L.Ed. 138; Shively v. Bowlby, 152 U.S. 1, 47, 14 S.Ct. 548, 565, 38 L.Ed. 331,
and cases cited; Mann v. Tacoma Land Co., 153 U.S. 273, 283, 14 S.Ct. 820,
821, 38 L.Ed. 714. See also Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862,
86 L.Ed. 1115. In Knight v. United Land Association, 142 U.S. 161, at page
183, 12 S.Ct. 258, at page 264, 35 L.Ed. 974, the Court said: 'Upon the
acquisition of the territory from Mexico the United States acquired the title to
tide-lands equally with the title to upland; but with respect to the former they
held it only in trust for the future states that might be erected out of such
territory.' In Alaska Pacific Fisheries v. United States, supra, 248 U.S. at page
87, 39 S.Ct. at page 41, 63 L.Ed. 138, the statement is made, 'That Congress
had power to make the reservation inclusive of the adjacent waters and
submerged land as well as the upland needs little more than statement. All were
the property of the United States and within a district where the entire dominion
and sovereignty rested in the United States and over which Congress had
complete legislative authority.' Compare also Borax Consolidated, Ltd., v. Los
Angeles, 296 U.S. 10, 15, 56 S.Ct. 23, 25, 80 L.Ed. 9.

36

23 Stat. 27:
'Sec. 12. That the Secretary of the Interior shall select two of the officers to be
appointed under this act, who, together with the governor, shall constitute a
commission to examine into and report upon the condition of the Indians
residing in said Territory, what lands, if any, should be reserved for their use,
what provision shall be made for their education what rights by occupation of
settlers should be recognized, and all other facts that may be necessary to
enable Congress to determine what limitations or conditions should be imposed
when the land laws of the United States shall be extended to said district; and to

defray the expenses of said commission the sum of two thousand dollars is
hereby appropriated out of any moneys in the Treasury not otherwise
appropriated.'
37

38

'The General Land Laws of the United States should be extended over the
Territory as early as possible. The natives claim only the land on which their
houses are built and some garden patches near their villages; they ask or expect
nothing more. A deed for their lots in severalty would be a very highly prized
document by them. The fisheries occupied by them before the advent of the
Whites should also be secured to them against encroachment. They ask only the
same rights and protection given the white man.'
'Now, therefore, I, Woodrow Wilson, President of the United States of
America, by virtue of the power in me vested by the laws of the United States,
do hereby make known and proclaim that the waters within three thousand feet
from the shore lines at mean low tide of Annette Island, Ham Island, Walker
Island, Lewis Island, Spire Island, Hemlock Island, and adjacent rocks and
islets, located within the area segregated by the broken line upon the diagram
hereto attached and made a part of this proclamation; also the bays of said
islands, rocks, and islets, are hereby reserved for the benefit of the
Metlakahtlans and such other Alaskan natives as have joined them or may join
them in residence on these islands, to be used by them under the general
fisheries laws and regulations of the United States as administered by the
Secretary of Commerce.
'Warning is hereby expressly given to all unauthorized persons not to fish in or
use any of the waters herein described or mentioned.'
A presidential proclamation had theretofore, 1892, set apart Afognak Island,
Alaska, and its adjacent bays and territorial waters as a public reservation for
fish culture without specific authority to reserve waters. 27 Stat. 1052.

39

Borax Consolidated, Ltd., v. Los Angeles, 296 U.S. 10, 17, 22, 56 S.Ct. 23, 26,
29, 80 L.Ed. 9. This case turned on the power of the United States to convey
tideland seaward of the line of mean high tide after California's admission to
the Union. Public lands there could not include tidelands as they passed to
California when she became a state. The cases cited in the Borax case to
support the statement as to public lands are cases that have nothing to do with
tidelands or coastal waters but depend upon whether the lands in question were
subject to disposal as property of the United States, i.e., public lands. See
Newhall v. Sanger, 92 U.S. 761, 763, 23 L.Ed. 769; Barker v. Harvey, 181 U.S.
481, 490, 21 S.Ct. 690, 693, 45 L.Ed. 963; Union Pacific R. Co. v. Harris, 215
U.S. 386, 388, 30 S.Ct. 138, 54 L.Ed. 246.

40

Act of May 14, 1898, c. 299, 30 Stat. 409, 48 U.S.C. 371, 48 U.S.C.A. 371
(homestead laws); Act of March 3, 1899, c. 424, 30 Stat. 1098, 48 U.S.C.
351, 48 U.S.C.A. 351 (public land surveys); Act of March 2, 1907, c. 2537,
34 Stat. 1232, 48 U.S.C. 365, 48 U.S.C.A. 365 (land districts).

41

See also Miller v. United States, supra, note 28; Heckman v. Sutter, 9 Cir., 128
F. 393.

42

Cf. United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 397, 54 S.Ct.
443, 447, 78 L.Ed. 859.

43

Alaska Fisheries General Regulations, 50 CFR, c. II, p. 2333.

44

Id., p. 2355; 3 F.R. 393.

45

Id., p. 2359.

46

11 F.R. 3105, 9528.

47

Executive Order of Feb. 17, 1922, creating the Alaska Peninsula Fisheries
Reservation; Executive Order No. 3752 of Nov. 3, 1922, creating the
Southwestern Alaska Fisheries Reservation. Regulations issued under these two
Executive Orders are printed in the Fisheries Service Bulletin of the Bureau of
Fisheries, Dept. of Commerce, No. 92, Jan. 2, 1923.

48

65 Cong.Rec. 5974; 65 Cong.Rec. 952021; 65 Cong.Rec. 9681 et seq.;

H.R.Rep.No.357, 68th Cong., 1st Sess., p. 2; SenRep.No.449, 68th Cong., 1st
Sess., p. 5; House Hearings, Committee on Merchant Marine & Fisheries,
Fisheries of Alaska (1924) H.R. 2714, January 31February 8, 1924, p. 21, et
seq. Note that this is a different bill than H.R. 8143 which became the White
Act but the subject was the same. See H.R.Rep.No.357, supra, p. 1. Dow v.
Ickes, 74 App.D.C. 319, 123 F.2d 909.

49

43 Stat. 466, 48 U.S.C.A. 226:

'Sec. 6. Any person, company, corporation, or association violating any
provision of this Act or of said Act of Congress approved June 26, 1906, or of
any regulation made under the authority of either, shall, upon conviction
thereof, be punished by a fine not exceeding $5,000 or imprisonment for a term
of not more than ninety days in the county jail, or by both such fine and
imprisonment; and in case of the violation of section 3 of said Act approved
June 26, 1906, as amended, there may be imposed a further fine not exceeding
$250 for each day the obstruction therein declared unlawful is maintained.
Every boat, seine, net, trap, and every other gear and appliance used or

employed in violation of this Act or in violation of said Act approved June 26,
1906, and all fish taken therein or therewith, shall be forfeited to the United
States, and shall be seized and sold under the direction of the court in which the
forfeiture is declared, at public auction, and the p oceeds thereof, after
deducting the expenses of sale, shall be disposed of as other fines and
forfeitures under the laws relating to Alaska. Proceedings for such forfeiture
shall be in rem under the rules of admiralty.
'That for the purposes of this Act all employees of the Bureau of Fisheries,
designated by the Commissioner of Fisheries, shall be considered as peace
officers and shall have the same powers of arrest of persons and seizure of
property for any violation of this Act as have United States marshals or their
deputies.'
50

43 Stat. 467, 48 U.S.C.A. 228:

'Sec. 8. Nothing in this Act contained, nor any powers herein conferred upon
the Secretary of Commerce, shall abrogate or curtail the powers granted the
Territorial Legislature of Alaska to impose taxes or licenses, nor limit or curtail
any powers granted the Territorial Legislature of Alaska by the Act of Congress
approved August 24, 1912, 'To create a legislative assembly in the Territory of
Alaska, to confer legislative power thereon, and for other purposes."

51

See 1 of the White Act, 337 U.S. 92, 69 S.Ct. p. 973, supra.

52

See 27 Stat. 631 relating to representation of Indians by the United States

district attorneys; Cohen, Handbook of Federal Indian Law, pp. 25253;
Powers of Indian Tribes, Solicitor of the Interior, Nathan R. Margold, October
25, 1934, M27781 pp. 5558. See United States v. Candelaria, 271 U.S. 432,
46 S.Ct. 561, 70 L.Ed. 1023; United States v. Berrigan, 2 Alaska 442; United
States v. Cadzow, 5 Alaska 125.

53

Dow v. Ickes, 74 App.D.C. 319, 123 F.2d 909, 916: 'It prohibits monopoly, but
it does not prohibit reasonable discriminations required by the purpose of
conservation and limitations inherent in the type of fishing to which the
Secretary's judgment must be applied.'

54

'An Ordinance. Whereas, under Public Land Order 128, of May 22, 1943,
creating the Karluk Reservation, the right to fish commercially in the waters of
said reservation is restricted to the inhabitants of the Native Village of Karluk
and vicinity, and;
'Whereas, non-residents desire to continue their fishing operations in the waters
of said reservat on;

'Now, Therefore, be it ordained by the Council of the Native Village of Karluk,

a federal corporation chartered under the Act of June 18, 1934, as amended;
'Section 1. That it shall be unlawful for any person, partnership, firm,
association or corporation, to fish for, take or catch any fish, or to operate any
fishing vessel, gear or equipment, within the waters of the Karluk Reservation
except under a permit issued by the Native Village of Karluk, for which the fee
shall be as follows:
'(A) For residents of the Territory of Alaska $1.00
'(B) For non-residents of the Territory of Alaska $25.00
'Provided further, that a person to qualify for a resident (Class A) permit must
have resided in the Territory of Alaska for three consecutive years prior to the
date of their application, or request, for a permit.
'Section 2. The possession of fish upon any vessel within said waters without a
permit shall constitute prima facie evidence of a violation of this ordinance.
'Section 3. Any violation of this ordinance shall be punished by a fine of not
exceeding Five Hundred Dollars ($500).
'Approved this 31st day of May, 1945.'
The 1946 ordinance made the fee $2.00 for residents of Alaska and $40.00 for
nonresidents.
Karluk had received its corporate charter, constitution and by-laws August 23,
1939. Official publications, Office of Indian Affairs, Department of the Interior,
See 16 and 17, 48 Stat. 987.
55

Section 5 of the Corporate Charter of the Native Village of Karluk provides that
'In using its powers the corporation must not do the following things: * * *
'Make leases, permits or contracts covering any lands or waters set aside as a
reserve for the Village without the approval of the Secretary of the Interior or
his authorized representative.'

56

'Commercial Fishing Permit.

'Karluk Indian Reservation, Karluk, Alaska, June 30, 1946.
'Pursuant to an Ordinance passed by the Council of the Native Village of
Karluk, Alaska, dated May 31, 1946, permission is hereby given by the Native

Village of Karluk to Ray Harmon of Kodiak, Alaska, to enter the waters and
land of the Karluk Reservation for the purpose of engaging in commercial
fishing for salmon, S.J. F & P Co., during the period:
June 1946 to September 1946.
'This permit is issued subject to the conditions printed on the back hereof.
I accept:
RAY HARMON
PERMITTEE
Boat No. or Name: Caroline
Fishing for:
(CANNERY)
San Juan
NAME
UGANIK BAY, ALASKA
ADDRESS
'Conditions
EWAN M. NAUMOFF
ISSUING OFFICER
PRESIDENT KARLUK
TITLE
Approved:
H. C. BINGHAM
APPROVING OFFICER
ASST. TEACHER A.N.S.

TITLE
'This permit is valid only if approved by the General Superintendent of the
Indian Service in Alaska or his duly authorized representative, and is revocable
in the discretion of the issuing officer. It is not transferable and must be carried
on the person of the permittee when engaged in fishing authorized hereunder,
and must be exhibited by any person requesting to see it. This permit is issued
and accepted by the permittee on the express condition that the permittee will
comply with all of the provisions of law and regulations governing fishing on
the Karluk Indian Reservation, Alaska. The permittee is warned not to interfere
with the fishing activities of the Indians of the Karluk Indian Reservation nor
use, disturb, or destroy any property belonging to said Indians.'
57

Article VI of the Constitution of the Native Village of Karluk provides that

'Changes in this Constitution and Bylaws may be made if the changes are
approved by the Secretary of the Interior and by a majority vote of the Village
members voting in an election called by the Secretary of the Interior at which at
least 30 percent of the voting membership take part.'

58

For a discussion of the difficulties of the preparation of regulations, compare

Addison v. Holly Hill Fruit Products, Co., 322 U.S. 607, 64 S.Ct. 1215, 88
L.Ed. 1488, 153 A.L.R. 1007. See also the statements of the Commissioner of
Indian Affairs in Hearings before the House Committee on Indian Affairs, 73d
Cong., 2d Sess., on H.R. 7902 (Wheeler-Howard act).

59

Virginian R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601,
81 L.Ed. 789; City of Harrisonville v. W. S. Dickey Clay Co., 289 U.S. 334,
338, note 2, 53 S.Ct. 602, 603, 77 L.Ed. 1208.

60

Compare Atlantic Coast Line R. Co. v. Florida, 295 U.S. 301, 314315, 55
S.Ct. 713, 718719, 79 L.Ed. 1451; Burford v. Sun Oil Co., 319 U.S. 315,
333, 63 S.Ct. 1098, 1107, 87 L,.ed. 1424; Addison v. Holly Hill Fruit Products
Co., 322 U.S. 607, 620, 64 S.Ct. 1215, 1222, 88 L.Ed. 1488, 153 A.L.R. 1007.

Set forth at note 1 of the Court' opinion.

See text of the amended regulation as quoted in the Court's opinion 337 U.S.
92, 69 S.Ct. 972.

Reference is made to the Court's opinion, 337 U.S. 92, 69 S.Ct . 973, for the
pertinent language of the statute and at note 49 for the Act's penal provisions.

See note 49, majority opinion.

See e.g., Department of Commerce, Laws and Regulations for Protection of

Fisheries of Alaska (Dept. Circular No. 251, 10th ed.), Dec. 22, 1926; Op. of
Solicitor, Dep't. of Interior, 56 I.D. 110.

See the legislative debates, reports and hearings cited in the text, supra.